COMMITTEE AGAINST TORTURE HEARS RESPONSE OF MOROCCO

The Committee against Torture this afternoon heard the response of Morocco to questions raised by Committee Experts on the initial report of that country on how it is implementing the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Responding to a series of questions raised by the Committee members on Monday, 1 November, the delegation, which was led by Mahjoub El Haiba, Interministerial Delegate for Human Rights, said that the mandate of the Equity and Reconciliation Committee was non-judicial, it examined widespread violations, such as such as enforced disappearances, arbitrary detentions, torture and rape, and provided five forms of reparation for victims and their families. Mr. Haiba said that Morocco was overhauling the criminal code and a definition of torture akin to that in the Convention would be included in that. He confirmed that persons had been sentenced to prison sentences for torture, and also clarified the law on persons who refused an order to torture. A member of the delegation spoke widely about the rights of detainees, which included access to a lawyer within 48 hours, and referred to a draft bill on violence against women. The State definition of terrorism, and the treatment of terrorist suspects were discussed, as was the ‘progressive abrogation of capital punishment’. A delegate refuted allegations of prisoner deaths from hunger strike at the Salé prison, confirmed that suicides in prisons were not common, clarified the conditions of detention in isolation, and also spoke about specific cases of persons being extradited from Morocco.

The Committee will submit its conclusions and recommendations on the report of Morocco at the end of the session on Friday, 25 November, 2011.

The delegation from Morocco included representatives from the Permanent Mission of Morocco to the United Nations Office at Geneva, the Ministry of Foreign Affairs, and the Commission on Human Rights, the Ministry of Justice, the Ministry of Health, the Police and the Ministry of the Interior.

The Committee will meet at 10 a.m. on Thursday, 3 November when it will begin consideration of the combined fourth to sixth periodic reports of Paraguay (CAT/C/PRY/4-6).

Response of Morocco

MAHJOUB EL HAIBA, Interministerial Delegate for Human Rights, first turned to the subject of transitional justice and the nature of the Moroccan experience of that, the forms of reparation and the establishment of the truth. The Equity and Reconciliation Committee was a non-judicial body that determined the responsibility of the State and its bodies, and not individual responsibilities, and looked at widespread violations, such as enforced disappearances, arbitrary detentions, torture and rape.

Reparation came in five forms: compensation, medical coverage, social re-inclusion of victims and their families, regularization of administrative situations and community rehabilitation. Enforced disappearance was seen as a complex situation that led to a loss of opportunities and income, and a lump sum was often provided to victims as compensation. Women and children who had been victims of human rights violations were especially provided for. Between 2006 and 2011, there were 17,461 cases of compensation and to date all beneficiaries had received their compensation, with the exception of a few cases, such as loss of documentation, or being unable to find the victims, for example because they lived abroad.

The Equity and Reconciliation Committee recognised that monetary compensation did not fully compensate victims. That was why reparation in the form of medical coverage, on the level of civil servants, was introduced. The philosophy of social re-inclusion was to ensure victims emerged from their victim status to become active members of society. Several victims of torture had been involved in Moroccan transitional justice. Social re-inclusion involved returning victims to their environment and exploring opportunities local to them. There had been over 1,000 beneficiaries so far. Community reparation objectives were to rebuild trust between the authorities and local communities and to uncover former places of secret detention. The Equity and Reconciliation Committee had uncovered all places of secret detention, and, along with non-governmental organizations, endeavoured to maintain the memory of those places. The overall truth of what took place had to be established, by public debates, archives, memory of the past and current happenings. Almost 1,000 cases were involved. The Equity and Reconciliation Committee recommendations and action plans for good governance on human rights and democracy were set forth in the new Constitution. The process of justice reform involved setting up new governance and national security services, and also combating impunity. A citizens’ platform had been established to promote human rights.

Morocco had made an irreversible decision to combat torture. It was the Government’s intention to bring legislation into line with the Convention against Torture, and that was an ongoing struggle. Morocco adopted a definition of torture in 2004, but would re-examine its legislation as part of the purpose of over-hauling the criminal code. Torture was currently defined as ‘any barbarous act that caused major physical or mental suffering, committed by a person, whether or not an official, against another person’. Committing, inciting, approving or even keeping silent about such an act were all criminal actions. Persons had been convicted of torture in Morocco. A police officer in Marrakesh was sentenced to 15 years in prison for torture, and another police officer sentenced to 10 years. There were more examples of that type within the written responses. Some complaints of torture had been lodged for personal reasons, revenge for instance, so the courts took full time to review those cases. Concerning impunity, a subordinate was not obliged to carry out an act of torture, even if ordered to by his or her boss. Moroccan law respected the ability of a subordinate not to carry out torture, as of course torture was illegal.

There was modified legislation on the rights of a detainee to contact a lawyer, which had to be before the expiration of 48 hours of custody. The judicial police were duty bound to inform a detainee, including minors, at the point of arrest, that he or she had the right to see a lawyer and to contact their family. If the detainee could not afford to pay a lawyer a free legal aid lawyer would be automatically appointed by a court. There was a new law to provide compensation to lawyers tasked with pleading those cases.

The definition of an act of terrorism was extremely complex. As the Committee knew, the whole world has not yet managed to agree on a definition of acts of terrorism. In Moroccan law, an act of terrorism was an act or crime that attempted to take the lives of others. The motive of the crime was always examined, for example to disturb public order or to intimidate the population. Any terrorist suspect was subject to the same legal provisions as others. In 2003 some persons were accused of terrorism. Those persons were convicted and sentenced on the basis of fair judicial principles in the presence of lawyers who defended them. The court used evidence from enquiries and from interrogations. Some persons had made confessions, which were compared with several sources, and were seen to be authentic. Amongst the accused one person had been caught en flagrante.

The law defined spousal rape as the aggression of a man towards a woman by applying force, whether they were married or not. If a wife was subject to violence or force then the wife had the right to go to court. There was no legal text in Morocco which exonerated a husband from any form of violation of his wife. A new law protected doctors from any sanctions if they notified authorities of any acts of violence against a minor, or a spouse, that they noticed during the course of their work.

The Moroccan penal code referred to the kidnapping of a minor, a girl, and said that the girl may choose to marry the man who had raped her. Since the girl was a minor, the girl had the right to tell her guardian about the rape, and then her guardian could agree to take the issue to court. Marriage of the girl to her rapist could only happen if the girl consented – it was not just a matter of the guardian’s consent.

There was a progressive abrogation of capital punishment, and the second Optional Protocol of the International Covenant on Civil and Political Rights had made a recommendation of that. A death sentence should no longer be given unless judges were fully unanimous on that decision. There was a proposal to reduce by two thirds the number of crimes which carried the death penalty. While there was still the possibility of applying capital punishment there had been a notable reduction of persons sentenced to death, from 1,000 in 1999 to 22 last year, because of a Royal Amnesty which commuted the death penalty to life imprisonment. Morocco had a new law which recognized the right to life, which was seen as a step towards speeding up the abolition of the death penalty.

The number of prisoners had increased by 11,000 in recent years, and there were almost 65,000 prisoners in Morocco. Around 48 per cent of those were in provisional detention. That was because it took a long time to go through the process, which could take five years and then still be renewable.

Regarding violence against women, Moroccan law had many texts which protected women, including a 2003 law. There was also legislation which protected in general citizens of Morocco, which included women. There were penalties for violence against women, taking into account aggravating circumstances. Women enjoyed protection from all sexual assaults and harassment, including sexual violence by a spouse. A new law dedicated to the protection of women would soon appear.

Concerning the event involving students from Marrakesh University, some students had committed criminal offences including burning down a university building and violently assaulting police under cover of a demonstration about university grants. They were arrested, and then claimed they had been ill-treated. Medical requests were granted, and it was revealed that when the students had been arrested they had in fact been aggressive towards and assaulted each other.

Civilians who had assaulted law enforcement officers were tried before military tribunals. Some of those assaults had resulted in the deaths of soldiers and members of the paramilitary core. The right to defence was guaranteed, and the judges were civilian judges because the accused were civilians. Imprisonment was limited to 60 days renewable.

A member of the delegation specified that public liberties had greatly increased since the abrogation of legislation that sanctioned any demonstrations that may disturb public order. The new 2009 Constitution set forth the freedom of peaceful assembly. Of course the risk of persons exploiting a climate of freedom was highlighted, as it could lead to an exacerbation of tensions: demonstrations could get out of hand, traffic could be held up, or demonstrators could enter public buildings. That had sometimes led to law enforcement officials putting an end to demonstrations in public places in several cities. The police were authorized to use force to disperse demonstrators if there was a threat to public safety, and indeed human rights.

The expulsions Committee members referred to had taken place, but they were within the law, as the persons involved were a threat to public order. The expulsion provisions were notified to the persons concerned, and foreign embassies were informed. A modus operandi was agreed upon so the persons had time to settle their affairs before leaving the national territory.

The National Directorate for Territorial Supervision was visited by Members of Parliament, who visited all of the offices and afterwards confirmed it was not a secret detention centre, it was just an ordinary prison. The public welcomed the considerable efforts made by the National Director of that body in combating terrorism, in particular terrorist cells, drug trafficking and money laundering.

The management of mixed flows of asylum seekers and economic migrants, and how to distinguish between them, was a challenge that many countries in the region faced. Morocco had always been subject to migratory flows, and had set up a national model to deal with it. The Constitution gave a high level of priority to the right of asylum. Foreigners enjoyed the fundamental freedoms that were granted to Moroccan citizens. There had always been a clear distinction between immigrants and asylum seekers and refugees, and the police and territorial border agencies had been trained on the issue.

Alexei Kalinichenko was imprisoned in Morocco for 17 months before being extradited to Russia; full details were provided to the Committee. All guarantees were provided to the accused and Morocco did not have valid reason to think the suspect would be tortured on his return. The Russian State guaranteed Mr. Kalinichenko’s human rights, that he would not be subject to any cruel, inhuman or degrading punishment and that he would be free to leave Russia upon finishing any sentence he might have. Mr. Kalinichenko was allowed access to his Moroccan lawyer to ensure those guarantees had been complied with. A European State had already set a precedent by extraditing a national to Russia with similar guarantees, and following that precedent Morocco felt no need to ask for extra guarantees.

The allegations of torture and rape of four prisoners in the prison of Temara Prison were found to be true. The detainees were examined by a medical committee, and the Government was being kept up to date on the case. That medical committee was fully independent of the prison facility, but one person refused a second medical examination. That person was found to have no signs of torture, but instead suffered from haemorrhoids which were fully treatable. The individuals were convicted of terrorism offences and sentenced to ten years in prison. Those sentenced to the death penalty enjoyed the same conditions as all other prisons: outings, visits, medical examinations, check-ups. Legislators insisted they must have medical and psychological examinations. While particular care had to be given to that category of prisoner, they all were allowed visits from their families.

Regarding detention in isolation, anyone placed in a detention centre was only put there following court proceedings, and could appeal the ruling. Other guarantees for persons held in isolation included a twice-weekly medical examination. If a doctor said that person could be suffering harm from being kept in isolation, then that person would be taken out of isolation.

The prison directorate had been working on prison reform. That could be seen in the increase in the number of prisoners, which required rigorous management of prisons, including training programmes for staff on discipline, living conditions and food provision. If a detainee died the local authorities were informed. All deaths were followed up by autopsies. In the vast majority of cases the deaths were due to natural causes and identified illnesses such as cancer, heart attacks. often the prisoner had already been in hospital.

Each year there was a variable suicide rate in prisons. In 2008 there were seven suicides in prisons, in 2010, nine and in 2011, seven; 50 per cent of suicides were by prisoners who had attacked members of their own family. Some developed European countries had a suicide in prison every three days.

The allegation of 13 persons dying from hunger strike in the Salé prison was false. Nobody had died from a hunger strike at Salé prison.

Questions by Committee Experts

ABDOULAYE GAYE, the Committee Expert who served as Rapporteur for the Report of Morocco, said that Morocco had answered most of his questions, and he was very grateful for that. Mr. Gaye was pleased to note that under the reforms, lawyers did not need to get permission from the prosecutor before they could see their client. He was reassured to hear Morocco’s explanation on the definition of terrorism, especially that the crime depended on its context. Mr. Gaye noted with concern that the police department was authorized to make enquiries into allegations of members of the police accused of acts of torture, and said that the enquiry should be made by a group outside of the police, in order to be objective.

Everyone knew what marital rape meant. However the fact that parents complained on behalf of a minor who was raped or subjected to violence was not satisfactory. The complaint should be made by the public prosecutor, not the parents. There should be a specific law about refugees and asylum seekers, in order to better manage migratory flows, as there seems to be much confusion on the issue.

CLAUDIO GROSSMAN, Chairperson and Committee Expert who served as Co-Rapporteur for the Report of Morocco, said that the Committee did ask Morocco not to extradite Mr. Kalinichenko and for access to visit him. However Morocco only informed the Committee of the situation in June 2011, a year after the extradition took place, in June 2010. But it was already done, and the Committee was sorry about that.

Concerning marital rape, did the delegation have statistics of the number of prosecutions that resulted in the minor, the girl, marrying the man who raped her? How many minors had rejected the offer to marry? Did the system protect the interests of all involved, or did it protect the ‘integrity’ of the minor and the values of her guardian?

Overcrowding in prisons, and easing it by building new prisons with better conditions, was never a popular proposal with the public, but it needed to be done. Around 50 per cent of prisoners were still awaiting trial, which was a very high proportion. The Committee had heard that prisoners held on death row were not allowed visits from family or lawyers.

Mr. Grossman said he came from a region that had secret detention facilities, and he asked whether the State party had done enough to identify those places, for example by bringing in ex-detainees. How the fact-finding visit to alleged secret detention facilities was conducted was very important. The use of confessions gained through torture was a massive issue, especially when there were thousands of such confessions. Were they written on the same computer, or in the same hand-writing, or with the same structure? Were the confessions witnessed by a lawyer?

An Expert asked about the Gadim Izik protest camp near El-Ayoune, and the allegation that persons were arrested and subjected to torture there – an allegation not included in the fact-finding mission on previous violations said to have taken place there.

A Committee Expert noted that from experience she knew there were two categories of secret detention centres, and they were not cellars and underground prisons as most commonly imagined. Secret detention and interrogation most often took place in clean and innocuous administrative centres, and also hospitals.

An Expert asked whether the conditions that allowed a perpetrator of rape to escape prosecution by marrying his victim could be outlawed?

The Truth Commission had identified 89 deaths of persons in custody. If any of those deaths were due to, or linked to, torture or ill-treatment, had the perpetrators been punished?

Response by the Delegation

Morocco did give the Committee a deadline to respond to the situation of Mr. Kalinichenko. Nobody told Morocco that Mr. Kalinichenko would be in danger of torture, the Government did not know that, and gave 10 months for the extradition to take place. Previously a European State had extradited a person to Russia with guarantees as to his rights, which set a precedent.

Morocco was in the process of learning about international practices on dealing with asylum seekers, and agreed with the Committee that a legal framework on the issue was needed.

There was no legal text that allowed a rapist to escape prosecution, even if he married the victim. The Penal Code referred to the rape of a minor and if the victim had reached puberty, she may choose to marry the person who raped her. That was a correct law because there was differentiation between the age of consent and the age of puberty. The couple may be in love, and should be allowed to choose. If a person married to maintain the unity of the family, this was outside the realm of the prosecutor. Otherwise allegations of rape could lead to serious consequences for a family. A draft bill that may have offered reform on the subject had been eliminated.

A prisoner on death row had the right to receive visits from his family, persons close to him and his legal representative. They were allowed to receive monitored assistance.


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